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United States v. Harrington

United States Court of Appeals, Seventh Circuit

August 19, 2016

United States of America, Plaintiff-Appellee,
Richard Harrington, Defendant-Appellant.

          Argued August 9, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 814-1 - Amy J. St. Eve, Judge.

          Before Bauer, Posner, and Sykes, Circuit Judges.

          POSNER, Circuit Judge.

         Richard Harrington is a former client of the well-known Chicago-based criminal defense lawyer Beau Brindley, who last year was acquitted in a bench trial presided over by Judge Leinenweber of the Northern District of Illinois of charges that Brindley had encouraged Harrington, a drug dealer, and other clients to lie on the stand during their criminal trials. Harrington managed to elude conviction in his own trial, but having pleaded guilty to other charges was sentenced by Judge St. Eve, also of the Northern District of Illinois, to 264 months in prison, subsequently reduced because of a retroactive change in the Sentencing Guidelines to 212 months.

         Just over a year after Harrington was sentenced, the government asked for his cooperation in its investigation of Brindley. After meeting with prosecutors several times, he testified as a government witness first before the grand jury and then for an entire day during Brindley's two-week trial. Despite Brindley's acquittal the government filed a motion under Federal Rule of Criminal Procedure 35(b)(2)(C) asking Judge St. Eve to reduce Harrington's sentence by 25 percent as a reward for his substantial assistance in investigating and prosecuting Brindley. But the judge granted only a 14 percent reduction, precipitating this appeal by Harrington. Rather oddly, as it seems to us, in this court the government is defending Judge St. Eve's rejection of its request for a larger reduction-not because it is convinced by her reasons (which are, as we're about to see, vulnerable to criticism), but because it thinks she has the ultimate authority to decide how much of a sentencing reduction to give a cooperating witness.

         Harrington's appeal pivots on the judge's explanation at the resentencing hearing for why she was rejecting the government's request for the larger reduction. She said:

The motion was made under Rule 35, which leaves it to the Court's discretion, if substantial assistance was provided, whether or not to grant a motion for a downward departure.
The substantial assistance-nothing I am saying is suggesting that you [one of the prosecutors] did not believe Mr. Harrington was telling the truth. So, I fully believe that you and the other prosecutors believed Mr. Harrington was telling the truth.
Judge Leinenweber, who is one of the finest trial judges in this building, found that the government had not met its burden of proof. And I think implicit in that is that Mr. Harrington's testimony didn't establish beyond a reasonable doubt that Mr. Brindley and his co-defendant had committed the crimes that they were charged with.
I recognize-and I have not seen the transcript, but based on what you are saying, I recognize-that Judge Leinenweber did not make any negative findings and did not find that you, Mr. Harrington, had lied in his courtroom.
As I made fully known to you when you first presented this motion, it concerns me that you are asking now for a benefit for Mr. Harrington having lied to this Court during his trial. I respectfully disagree with you when you say, well, everybody has a crime when they come in on a Rule 35 and this is no different than that, because certainly everybody has the underlying crime that they are convicted of; but, this goes above and beyond. In this courtroom, he came in, in addition to the underlying drug crime, and lied to the Court when he was testifying.
I also gave Mr. Harrington the benefit of the doubt during the original sentencing hearing. The probation officer and the government both asked for an obstruction of justice enhancement and a two-level enhancement. And I think I made clear at the sentencing that I could have given that, but I did not. So, you got the benefit of that, which, given your statements now, you certainly were not entitled to. So, that gives me concern.
Having said that, I recognize that there is value to encouraging cooperators to come forward when they are in this situation; and, I recognize there is value to the government in being able to offer deals and potential lower sentences to individuals who are willing to come forward to help with difficult prosecutions.
I will grant your motion, but I am not granting it in full. I am not giving, for the reasons I have just articulated, the full amount that you ...

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